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Published online by Cambridge University Press: 02 January 2018
This paper explores the role of ulterior intention (and ulterior mens rea more generally) within the criminal law. Divided into three sections, we first question the role and location of ulterior mens rea within the offence elements of acts, circumstances and results. Concluding that such accommodation is conceptually unsound, we highlight the problems this has caused in the context of inchoate liability, where the separation of elements is now essential to the application of the law. Central to this discussion is the problematic attempts case of AG Ref (No. 3 of 1992) [1994] 1 WLR 409. We contend that best way forward is to recognise a new ulterior mens rea element. Such an element has the potential to maintain conceptual coherence between offence elements and resolve substantive problems arising in the context of inchoate liability, as well as creating a new method for limiting inchoate liability (and infinite inchoate liability) from the potential for over-criminalisation.
I would like to thank Jeremy Horder, Kenneth Simons, Lucy Vickers, Adrian Hunt and Phoebe Child for reading an earlier draft of this paper, and discussion groups at the SLS Conference, University of Birmingham and Oxford Brookes University. The normal disclaimer applies.
1. For an overview of such offences, see Horder, J ‘Crimes of ulterior intent’ in Simester Ap and Smith Ath (eds) Harm and Culpability (Oxford: Clarendon Press, 1996) p 153.Google Scholar
2. Theft Act 1968, s 1.
3. Bribery Act 2010, ss 1–2. For offences under these sections, it is not necessary to show that D induced P to perform her duty improperly, or conversely, under s 2, that D induced an advantage from P in exchange for her offer to act improperly. Rather, it is enough that this was her intention.
4. See, for example, recent fraud and terrorism offences. Leader Elliot, I ‘Benthamite reflections on codification of the general principles of criminal liability: towards the panopticon’ (2005) 9 BC L Rev 391, 429, remarks upon the ‘epidemic spread of offences that take the form of a prohibition of possession of a thing with intent to commit an offence’.Google Scholar
5. See Child, JJ and Hunt, A ‘Risk, pre-emption, and the limits of the criminal law’ in Doolin, K et al Whose Criminal Justice? State or Community? (Hook, Hampshire: Waterside, 2011) p 51;Google Scholar McSherry, B ‘Expanding the boundaries of inchoate crimes: the growing reliance on preparatory offences’ in McSherry, B et al (eds) Regulating Deviance – The Redirection of Criminalisation and the Futures of Criminal Law (Oxford: Hart, 2009) p 141;Google Scholar Horder, see above 2.
6. The act element represents the physical conduct of D necessary for the offence; for example, the movement of D's body. The separation of the act element into actus reus and mens rea represents a controversial decision. However, as the acceptance of this choice is not directly relevant to the issue at hand, it will not be explored further in this paper.
7. The circumstance element represents surrounding facts that are necessary for the offence; for example, that property appropriated in theft should ‘belong to another’.
8. The result element represents those things that have been caused by D's acts that are necessary for the offence; for example, ‘death’ in murder.
9. US Model Penal Code 1962 (hereafter US MPC). See Leader-Elliott, above 5.
10. Law Commission A Criminal Code for England and Wales (2 vols) (Law Com No. 177, 1989).
11. The exception to this, discussed in section 1, is the recent Irish Draft Criminal Code. Criminal Law Codification Advisory Committee Draft Criminal Code and Commentary (DC/04, 2010).
12. Similar recommendations have been made for conspiracy, complicity and the intoxication rules: Law Commission Conspiracy and Attempts (Law Com No. 318, 2009); Law Commission Participating in Crime (Law Com No. 305, 2007); Law Commission Intoxication and Criminal Liability (Law Com No. 314, 2009). For discussion of the latter, see Child Jj ‘Drink, drugs and law reform: a review of Law Commission Report No. 314’ (2009) Crim L Rev 488.
13. It is important to recognise that, in the context of these general inchoate offences, we are discussing the separation of elements within the principal offence (the offence attempted, assisted, encouraged or conspired). The separation of the D's conduct into elements (eg that D went beyond mere preparation or assisted, encouraged or agreed) is not currently at issue.
14. [1994] 1 WLR 409.
15. Criminal Damage Act 1971, s 1(2).
16. See Ormerod, D Smith and Hogan's Criminal Law (Oxford: Oxford University Press, 13th edn, 2011) p 136;CrossRefGoogle Scholar Simester, AP et al Simester and Sullivan's Criminal Law: Theory and Doctrine (Oxford: Hart, 4th edn, 2010) p 138;Google ScholarHorder, above 2.
17. Criminal Damage Act 1971, s 1(2).
18. For example, the new assisting and encouraging crime offences. See Child JJ ‘Exploring the mens rea requirements of the Serious Crime Act 2007 Assisting and Encouraging Offences’ (2012) J Crim L 220.
19. Element analysis does not presume that every offence should include all six elements (eg where conduct crimes will not include results). However, in order to operate as a consistent and universal tool, it must be possible for all offence requirements to be classifiable within an appropriate element.
20. This is how ulterior intention is commonly presented in textbooks. See Ormerod, above 17, p 136.
21. This approach is reflected in codifications of mens rea terminology. United States (§ 2.02. US MPC); Australia (Div. 5, Aus Commonwealth Criminal Code 1992); New Zealand (Cl. 21–24, Crimes Bill 1989); England and Wales (Cl. 18, Draft Criminal Code Bill 1989).
22. The Sexual Offences Act 2003, s 3.
23. Sullivan, Gr, ‘Bad thoughts and bad acts’ (1990) Crim L Rev 559.Google Scholar
24. The Sexual Offences Act 2003, s 78 (my emphasis).
25. Sullivan, above 24, at 559.
26. Law Commission Conspiracy and Attempts – a Consultation Paper (Consultation No. 183, 2007); Law Commission Inchoate Liability for Assisting and Encouraging (Law Com No. 300, 2006); Law Com No. 318.
27. Consultation No. 183 [4.6–4.15]; Law Com No. 318 [2.14–2.29].
28. Law Com No. 318 [2.57]. For a similar discussion regarding ulterior intention and circumstances, see [2.147–2.148]. Draft Bill cl. 1ZA(2)(a) and 3A(2)(a).
29. Law Com No. 318 [2.58].
30. The establishment of sexual gratification (an internal event) as an actus reus result element requires further justification. However, as it is not essential for this paper, it will have to wait for another occasion.
31. On the remaining uncertainty, see Robinson Ph and Grall Ja ‘Element analysis in defining liability: the Model Penal Code and beyond’ (1983) Stan L Rev 681.
32. The approach does not, however, escape the ‘second substantive concern’ discussed in section 2.
33. As Horder, above 2, pp 156–157, has identified, offences of this type also include where D completes a crime with mens rea as to a further offence (eg committing a non-sexual offence with the intent to commit a sexual offence: Sexual Offences Act 2003, s 62), where D commits a civil wrong with mens rea relating to a future offence (eg burglary: Theft Act 1968, s 9(1)(a)), as well as where D's mens rea as to a future offence is accompanied by conduct that is otherwise innocent (eg possession of anything with intent to destroy or damage property: Criminal Damage Act 1971, s 3).
34. For an opposing view, contending that such requirements are never conceptually equivalent, see Scottish Law Commission The Mental Element in Crime (Scot. Law Com No. 80, 1983) [3.2–3.14].
35. See Robinson, Ph, Structure and Function in Criminal Law (Oxford: Oxford University Press, 1997) p 131.CrossRefGoogle Scholar
36. Cunningham [1981] 2 All ER 863.
37. See Robinson, above 36; Robinson Ph ‘A functional analysis of criminal law’ (1994) 88 Nw U L Rev 857; Robinson and Grall, above 32.
38. Robinson, above 36, pp 129–137.
39. Ibid.
40. Ibid., p 130.
41. See generally, Robinson, above 36.
42. See Robinson, above 36, pp 128–129, 132.
43. ‘Outcome luck’ arises from our inability to control consequences. Ashworth A ‘Taking the consequences’ in Shute S et al (eds) Action and Value in Criminal Law (Oxford: Oxford University Press, 1993) p 107.
44. Robinson, above 36, pp 132–137.
45. Code Draft, above 12.
46. Ibid., Head 1111 (emphasis added).
47. Ibid., Head 5103 (emphasis added).
48. Ibid.
49. See Buxton, R ‘The Working Paper on Inchoate offences: Incitement and Attempt’ [1973] Crim L Rev 656;Google Scholar Williams, G ‘Intents in the alternative’ (1991) 50 Cambridge L J 120;Google Scholar Robinson and Grall, above 32.
50. Serious Crime Act 2007, Part 2.
51. [1990] 1 WLR 813.
52. Where an ulterior requirement specifies intention, mens rea will not vary for attempts whether it is classified as a circumstance or result, making the distinction less problematic.
53. AG Ref (No. 3 of 1992) at 411 (quoting Norrie J).
54. Ibid. 418 [C–D] (Schiemann J), referring to D's need to intend the ‘missing physical element’. See Stannard Je ‘Making up for the missing element – a sideways look at attempts’ (1987) 7 Legal Stud 194.
55. For criticism, see Duff Ra ‘The circumstances of an attempt’ (1991) 50 Cambridge L J 100, 111–112; Duff Ra ‘Recklessness in attempts (again)’ (1995) 15 Oxford J Legal Stud 309, 311–312; Duff Ra Criminal Attempts (Oxford: Oxford University Press, 1996) pp 14–15.
56. Although it is important not to overcomplicate our analysis, it should be noted that at the time AG Ref (No. 3 of 1992) was decided, ‘recklessness’ could be satisfied subjectively or objectively. Our analysis of this case, in line with the current law, will focus on subjective recklessness. For discussion in relation to conspiracy, see Ormerod D ‘Making sense of mens rea in statutory conspiracy’ (2006) CLP 185, 194–197.
57. See Simester et al, above 17, pp 339, 342.
58. See Davis, M ‘Signals of symmetry in reckless attempts’ (1996) 25 Anglo-Am L Rev 367, 371;Google Scholar
59. See Smith, JC ‘Attempts’ (Case Comment: O'Toole [1987] Crim L Rev ) (1987) Crim L Rev 759, 761.Google Scholar
60. See Elliott Dw ‘Endangering life by destroying or damaging property’ (1997) Crim L Rev 382, 394.
61. See Simester et al, above 17, p 340. Having discussed the requirement as a result element, the authors recognise that it could be interpreted as an ulterior part of the mens rea. However, they do not examine the implications.
62. See Smith, above 60, at 759, 761. See also Case Comment ‘Attempted aggravated criminal damage – “with intent to commit (the) offence” ’ (1994) Arch N 4. Elliott Cf, above 61, at 394.
63. In the context of attempt, for example, Elements 1–6 contain D's actus reus and mens rea as to going beyond mere preparation, where Element 7 (separated into Elements P1–7) contains D's mens rea as to the principal offence attempted.
64. Despite separating their analysis of ulterior intention, the Irish Draft Code does not explore the substantive concerns with inchoate liability. Rather, this is left to the review of the Irish Law Commission. Unfortunately, the Irish Commission not only reject the use of element analysis (and the separation of ulterior mens rea), but recommend an approach that makes little effort to engage with inchoate liability as a conceptually distinct form of liability at all. See Child Jj and Hunt A ‘Mens rea and the general inchoate offences: another new culpability framework’ (2012) NI Legal Q 245.
65. This conclusion challenges the current laws approach to attempt and assisting an encouraging, both of which vary the mens rea required for the different elements of the principal offence. This challenge is examined in Child and Hunt, above n 64. However, it need not be explored further in this paper.
66. Ashworth, A Principles of Criminal Law (Oxford: Oxford University Press, 5th edn, 2006) p 423;Google Scholar endorsed by the Law Commission in Consultation No. 183 [1.6–1.7] and Law Com No. 300 [5.86].
67. See above 70.
68. Although we employ the label ‘infinite inchoate liability’, it is acknowledged that this is not strictly accurate: liability will always require a principal offence at the end of the chain, even if there are several inchoate links. Indeed, it has been suggested on blind review that the label ‘nested inchoate liability’ may be preferable, and I agree. However, for ease of understanding, I continue to employ the label ‘infinite’ in line with contemporary Law Commission material.
69. See Simester et al, above 17, pp 292–293, stating that D must ‘intend D2 to assist, encourage, conspire to commit, or attempt the substantive offence’; Ormerod, above 17, pp 472–473, stating that D's liability arises ‘only if it was his direct intention that P should’ commit the principal (inchoate) offence; Ormerod D and Fortson R ‘Serious Crime Act 2007: the Part 2 offences’ (2009) Crim L Rev 409–410, stating that D's liability is again contingent on ‘his direct intention’ that P should complete the offence.
70. Serious Crime Act 2007, s 49(4)&(5).
71. Ibid.
72. Theft Act 1968, s 9(1)(a).
73. See eg Sexual Offences Act 2003, s 8 (Causing or inciting a child under 13 to engage in sexual activity); s 10 (Causing or inciting a child to engage in sexual activity).
74. Sexual Offences Act 2003, s 14 (Arranging or facilitating commission of a child sex offence). A ‘child sex offence’ here includes inchoate offences under ss 8 and 10.
75. It is possible, of course, to add relevant offences to those already excluded from ss 45 and 46. Serious Crime Act 2007, s 49(6).
76. Ormerod and Fortson, above 70, at 409. Interestingly, outside of the context of infinite inchoate liability, Ormerod and Fortson recognise that intention is not required (at 406).
77. Ormerod and Fortson, above 70, make reference to statements within Law Com No. 300 [7.23] that D should ‘only’ be liable if she intends the principal offence (criminal attempt). However, in the following paragraph setting out their recommendations, the Commission clarify this to include ‘intending that P should attempt, or be encouraged to attempt, to commit the offence’ (my emphasis). Thus, as is also clear in the Commission's appended draft Bill, D must intend her conduct to assist or encourage, but she does not have to intend P to complete the principal offence.
78. If such an intention is required, then it is limited to the act element of P's principal offence alone. However, as the Serious Crime Act is silent on this point, an alternative interpretation is that D need only be reckless as to the act element. See Child, above 19.
79. Serious Crime Act 2007, s 47(5).
80. See Child, above 19.
81. Law Com No. 300, [7.1].
82. Ibid, Part 7.
83. D's act of assistance or encouragement does not have to be as substantial as the lending of a car. The same mens rea requirements will apply when D performs any act that is capable of providing assistance or encouragement.
84. The separation of the principal offence into elements is essential in order to identify the mens rea required of D that may vary between each. In a similar manner, rather than simply requiring intention as to Element P7 of the principal offence, we could use the separation of the elements of the future offence (within Element P7) to provide a similarly varied approach. However, the complexity involved does not appear to be balanced with any obvious advantages. Therefore, our policy is simply to require D to intend Element P7 (and thus to intend every element of the future offence within Element P7).
85. D's intention need not be an intention to cause P's state of mind. Rather, D's intention need only demonstrate a desire or virtually certain belief that P will act with such mens rea.
86. AG Ref (No. 3 of 1992) at 415[B].
87. AG Ref (No. 3 of 1992) at 411 (quoting Norrie J).
88. See below 91.
89. Woollin [1999] AC 82.
90. There will be limited circumstances in which this may not be the case. For example, if D makes a plan to let off a bomb in a day's time, she may be genuinely unsure (at the time of the conspiracy) if there will be an endangerment of life, but know that she will be aware one way or another when completing the principal offence. This, it is submitted, would be a case where D is reckless as to her future recklessness, and not intending or knowing it. This will fall short of liability.
91. Mir (Unreported, 1994) (CA). See Case Comment ‘Conspiracy to commit aggravated criminal damage’ (1994) Arch N 4; Law Com Consultation No. 183, [A.1–3].
92. See eg Consultation No. 183, [A.1–3].
93. Case Comment, above 92.
94. Leader-Elliott, above 5, at 430.
95. See eg Law Commission recommendations on conspiracy (Law Com No. 318); complicity (Law Com No. 305) and even the rules on intoxication (Law Com No. 314).
96. See above 5.
97. Most significantly, the Serious Crime Act 2007, s 49 has expanded the combinations of infinite inchoate liability permitted within the old law (including attempt, conspiracy and incitement to incite and conspiracy and incitement to attempt) to include assisting, encouraging, conspiring and attempting to assist, assisting to encourage, assisting to attempt, and assisting or encouraging to conspire. The Commission also makes clear that they expect a greater use of infinite inchoate liability within the policing of serious crime (Law Com No. 318, [3.9–3.10]); highlighting supportive research, Gallagher B et al International and Internet Child Sexual Abuse and Exploitation: Research Report (2006), available at http://eprints.hud.ac.uk/461/1/GallagherInt.pdf (accessed 1 July 2013).